The U.S. Department of Education is planning to expand a pilot initiative that would flip the order of key consequences for schools’ low academic performance under the No Child Left Behind Act.
Building on an initiative piloted this school year in Virginia, participating districts could offer students a choice of supplemental educational services, or SES, a year before having to provide the option of transferring to a higher-performing school. Secretary of Education Margaret Spellings announced the plan last week.
While some state education officials are welcoming the new flexibility, which some of them had long sought, the effort is also facing sharp criticism.
Lawyers at two advocacy groups that want tougher enforcement of the law’s choice provisions argue that the secretary’s move oversteps legal bounds. One of the lawyers, Clint Bolick from the Phoenix-based Alliance for School Choice, said last week that his group was researching the possibility of a legal challenge.
In a May 15 letter to chief state school officers, Ms. Spellings said states that meet three eligibility criteria could apply on behalf of up to seven districts each to take part.
“If we get kids help first before the public school choice thing, as a possibility, [that] makes sense to me,” Ms. Spellings said in a May 17 session with reporters. “Let’s do stuff that works better.”
Under a “flexibility agreement” reached last August, the department is running a smaller pilot project in four districts in Virginia. The pilot marked the first time the agency had granted a waiver of the actual provisions of the No Child Left Behind Act itself. (“NCLB Waiver Lets Virginia Offer Tutoring Before Choice,” Sept. 7, 2005.)
The normal order calls for districts to offer school choice first, after a school receiving federal Title I aid has not made adequate yearly progress, or AYP, for two consecutive years. If the school fails for a third year, the district must also give students free access to supplemental services such as tutoring.
Even many supporters of the 4-year-old No Child Left Behind law have called that order illogical.
Ms. Spellings wrote in her letter that the “positive results” in the Virginia pilot showed that offering the flexibility on a broader scale was warranted. At the same time, the letter warns that the department is prepared to take “significant enforcement action” against states and districts that fail to meet the choice and SES requirements, including possible withholding of federal funds.
With the June 19 deadline for applications nearing, Valerie A. Woodruff, Delaware’s education secretary, predicted that her state will likely pursue the new flexibility.
“It makes more sense to give schools the opportunity to meet the needs of kids … before you just go wildly into choice,” she said.
Jack Jennings, the president of the Center on Education Policy, a Washington research and advocacy group that has monitored the law’s implementation, says he sees the department’s move as significant.
“In our surveying over the last four years, this has been a common recommendation from school districts and states,” said Mr. Jennings, a former longtime aide to Democrats on the House education committee.
But he estimated that more than half of states might not be eligible.
“There’s a whole slew of conditions on it,” he said. “Those conditions will limit this considerably.”
To participate in the pilot, states must have determined whether schools had made AYP before the start of the academic year for this school year and last; have an evaluation of SES providers under way; and have their assessment system fully or conditionally approved by the Education Department or have such approval “expected,” according to information accompanying Ms. Spellings’ letter.
For a district to participate, it must have issued “timely” notification letters to parents on both choice and SES over the past two years.
Jeff Simering, the legislative director for the Washington-based Council of the Great City Schools, which represents the nation’s largest urban school districts, suggested that while the new flexibility was “reasonable,” he does not believe it will mean much.
He said Education Department officials have long suggested that districts should make supplemental services available when choice is not a realistic option.
“We’ve heard that for the last three or four years, so I don’t think this is a major change,” he said.
He also said the issue is a moot point for a large number of Title I schools that under the law already have to meet both the choice and supplemental-services options.
Dianne M. Piché, the executive director of the Citizens’ Commission on Civil Rights, a Washington-based watchdog group, sharply criticized the department’s plans.
“We’ve been monitoring implementation, and with very few exceptions, school districts are doing a terrible job in finding spaces and offering parents the opportunity to transfer to a better school, as they’re required to do,” she said. “And so it baffles me that we wouldn’t be trying to find more ways to provide more choices for parents instead of restricting parents’ options under the law.”
Ms. Piché, a lawyer, also questioned the move’s legality. “There’s no statutory authority to do this,” she contended.
Mr. Bolick of the school choice alliance agreed. “It seems completely outside the secretary’s authority,” he said. “The law is very explicit about the rights children have.”
His group filed a formal complaint with the department in March charging that two Southern California districts had failed to offer choice under the law. (“Complaint Targets NCLB Transfers in Calif.,” March 29, 2006.)
But Valerie L. Smith, an Education Department spokeswoman, argued that the federal agency has clear authority to take such steps, citing Section 9401 of the law. This section, she wrote in an e-mail, states that, with limited exceptions, “the secretary may waive any statutory or regulatory requirements of this act” for a state, district, or school.
On the enforcement front, Ms. Spellings cited concerns about weak compliance by some states and districts with the school choice and tutoring options under the law.
“In most cases, when [districts] are out of compliance with public school choice and [the SES provisions], I will place conditions on state grants and consider withholding federal funds or entering into a compliance agreement,” she wrote.
Mr. Bolick said he was pleased by those comments, but suggested the secretary’s letter sent mixed messages.
“Waivers and enforcement actions simply don’t mix,” he said.
Staff Writer Michelle R. Davis contributed to this report.
A version of this article appeared in the May 24, 2006 edition of Education Week as Choice, SES Would Flip Under Plan